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The Court of Justice of the European Union hands down judgment on third party access to documents in a cartel proceeding

The Court of Justice of the European Union (“ECJ”) handed down its judgment on a reference for a preliminary ruling from the Austrian Cartel Court concerning third party access to documents in a cartel proceeding. The case concerns a judgment of the Austrian Cartel Court of March 2010 imposing fines amounting to EUR 1.5 million on a number of undertakings for their participation in a cartel in the Austrian market for the wholesale distribution of printing chemicals. Verband Druck & Medientechnik, an association representing the interests of undertakings in the printing sector (“Association”), applied for access to documents forming part of the file relating to the national cartel proceeding in order to prepare for an action for damages. The Austrian Federal Law precludes third party access to court files of public law competition proceedings without the consent of all the parties to the proceeding. Since all parties to the cartel proceeding in question refused to consent to the access by the Association, neither the file nor the ruling of the Cartel Court could be given to the Association to assist in the pursuit of a damages action against the cartel participants. In light of the ECJ’s Pfeiderer judgment of June 2011 concerning third part access to documents provided under a leniency program, the Austrian Cartel Court questioned whether the Austrian law is compatible with the principle of effectiveness and the obligation on member states to allow individuals to bring actions for damages for breach of competition law. Therefore, the Austrian Cartel Court referred the question to the ECJ. The ECJ concluded that the effectiveness under EU law precludes a provision of national competition law that makes access to documents, forming part of the file in national cartel proceedings, to third parties who wish to prepare damages actions, solely subject to the consent of all parties to those proceedings without leaving any possibility for the national courts to weigh on a case-by-case basis the respective interests involved. Source: of the European Court of Justice, Case C 536/11 - Bundeswettbewerbsbehörde v Donau Chemie AG and others, 6/6/2013

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